Shari Klevens, left, and Alanna Clair, Dentons (Courtesy Photo)

For attorneys and many other professionals, the phrase "home office" has taken on a new meaning during the COVID-19 pandemic. In very short order, the vast majority of attorneys have been forced to adjust to working entirely from home while attempting to provide the same quantity and quality of services as they previously provided with the luxury of the resources available at their office.

Technology has certainly allowed attorneys to cope with this unprecedented pandemic in ways that would have been unimaginable if a similar situation had arisen even just 10 or 20 years ago. However, even with all of the new tools available to attorneys, a number of questions remain regarding the ability of attorneys to take a "business as usual" approach when it comes to practicing law during the pandemic. Below are some key questions and concerns on the minds of attorneys.

Potential Increase in Attorney Malpractice Claims

Economists are increasingly concerned that the pandemic will lead the world into a new financial crisis on the level of or potentially worse than the 2008/2009 crisis. Attorneys are not immune from recessions, although certain specific practices areas may be in higher demand in the aftermath of COVID-19 and its unique challenges. However, aside from the potential business impact, trouble in the economy can foretell an increase in claims against professionals. Notably, the years following the last financial crisis led to a large uptick in claims against attorneys.

Clients who lose money, opportunities, or deals may look to blame others to recover their losses, even where no fault actually lies with their attorney. In the years after 2008, for example, there were a number of claims against lawyers, realtors, and financial institutions brought by clients in real estate transactions and other financial services. Clients in the COVID-19 environment may similarly take the position that their attorneys were "guarantors" of specific outcomes for their clients, even though the law does not hold lawyers to such a standard.

Thus, it can be helpful for attorneys to document the instructions they receive from clients and the work that the attorneys are doing to support clients during this unusual time. While such documentation may not be required under the client engagement terms or the Rules of Professional Conduct, maintaining such documentation later may help in reminding a client of the agreed parameters of the legal work or in defending a legal malpractice claim. It is also important to remember that receiving a claim for legal malpractice does not mean the attorney has actually committed legal malpractice.

Risks for Ongoing Cases

For many attorneys, there is a great deal of practical uncertainty regarding ongoing representations and deadlines. Some courts have closed entirely; others have closed for non-emergency business but are continuing to manage other cases; still others have modified the filing or docketing rules. It can be risky to simply assume in an active matter that deadlines and obligations have been stayed without the appropriate support.

If there are deadlines in a matter or under a statute or regulation, those could still apply absent an agreement with opposing counsel and/or an order from the court postponing or modifying those deadlines, or orders from federal or state authorities relieving the requirements. Further, in certain situations, attorneys can review with clients whether the current business environment warrants moving some cases forward or whether it is in the client's interest to defer decisions or activity.

There can also be risks stemming from the potential distractions to attorneys posed by the ongoing news cycle, a sick relative, the new challenges of remote working, the closures of schools and daycare centers, and the client's own challenges in this situation. First, it is helpful for all of us to have compassion for the changes to daily life that everyone is experiencing.  Second, attorneys can take steps to "return to basics" of good practice management, such as ensuring that docketing, calendar management, and professional support resources are in place to provide competent legal services to the client and help reduce risk.

The Risk of Dabbling

Another consequence of financial pressures on attorneys and practices is that attorneys may look for ways to stay busy if their work has slowed down. However, attorneys who "dabble" in specialized areas of the law in which they lack experience or knowledge can create risks for themselves.

Indeed, Rule 1.1 of the California Rules of Professional Conduct provides that lawyers must perform legal services with "competence," which is defined as the "learning and skill" and "mental, emotional, and physical ability reasonably necessary for the performance of such service[s]." The Rule further specifies that lawyers can either acquire sufficient learning and skill before performance of the services is required, or can associate with or consult with other lawyers whom the lawyer reasonably believes is competent. Absent compliance with the Rule, an attempt to increase revenue by "dabbling" in other types of legal matters may lead to mistakes, misunderstandings of the law, and ultimately, an increased risk of client claims.

Mental Health Risks

Part of social distancing means that those who rely on social interactions to alleviate depression or maintain sobriety may be affected. Many organizations dedicated to well-being have begun having meetings online or posting other resources for people to use from home. California's Lawyer Assistance Program, has a confidential hotline to help lawyers struggling with stress, anxiety, depression, substance abuse, and other issues. The LAP telephone hotline is available at 877-LAP-4HELP.

Stressful conditions or social isolation can compound negative feelings. Attorneys should seek or accept help as needed. It also can be helpful to check on others to see how they are coping and to help combat loneliness or other negative feelings.

Shari L. Klevens is a partner at Dentons US and serves on the firm's US Board of Directors. She represents and advises lawyers and insurers on complex claims, is co-chair of Dentons' global insurance sector team, and is co-author of "California Legal Malpractice Law" (2014). Alanna Clair is a partner at Dentons US and focuses on professional liability defense.  Shari and Alanna are co-authors of "The Lawyer's Handbook: Ethics Compliance and Claim Avoidance."